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A Thought on a Judicial Shutdown

Somewhat moot, with a bill to reopen the government having been passed and signed into law Wednesday night, but the subject is useful in its own right. During the shutdown, the courts were at a real risk of running out of funds and having to shut down.

Fed up with the shutdown and sequester budget cuts, judges are mounting a “work-in.”

More than two dozen federal courts have avoided furloughs by designating all of their staff essential….

Those two dozen include the Appellate Court of the 2nd Circuit.

As the WSJ‘s Law Blog asks, what are the ethics of this? Legally, a judge who participates in this decision or its development must recuse himself from related cases—for instance, should a recalled furloughee, or a declared essential staff member, object and sue.

But what if all the Federal courts designated their entire staffs essential? After all, the work of the courts must go on, and they’re at minimum staffing in the best of times. To whom could that “work-in” staffer appeal for redress, should he feel the need for redress?

Even more important, it seems to me, though, are the ethics of allowing the courts to be shut down against the backdrop of the other two branches of the Federal government—of which the Judicial Branch is most definitely the equal—remaining fully open for business, if on slightly reduced staffing.

Moreover, if the Executive Branch is going to continue one of its central duties—enforcing the law—a fully functioning judiciary is an absolute necessity to adjudicate those enforcement actions. The obligation to enforce and the enforcee’s right to a speedy trial are not subject to shutdown.